NICK BERGERIS v. JEANINE BERGERIS
Court of Special Appeals, Meredith, Filed April 30, 2014,
Divorce- Phone sex does not constitute “cohabitation” precluding grant of an absolute divorce under FL 7-103(a)(4)

Family Law 7-103(a)(4) allows a court to grant an absolute divorce where there is a

12-month separation, when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce;

The husband in this case filed for “absolute divorce” based on that twelve-month separation. His then-wife (not to give away the ending) opposed, claiming that she

continued to have sexual relations with Husband by way of “phone sex,” i.e., sexually explicit or provocative telephone conversations and text messages.

Husband conceded that he had engaged in sexually explicit telecommunications with Wife during the twelve months preceding his claim for a divorce, but he testified that there had been “no physical contact of a sexual nature with Wife during that period when they lived separate and apart”

The trial court held that

“phone sex comes within the broader definition of sexual relations that is broader than sexual intercourse.”

The Court of Special Appeals disagreed. They’re not the only one.

Notes on divorce from the case:

– FL § 7-103(a)(4) requires an uninterrupted period of 12 months prior to the filing where both parties are both: 1) living separately and 2) not cohabitating
– “Separate and apart” means that the parties cannot live under the same roof during the required statutory period.
– “Without cohabitation” means that there must be no sexual relations between the husband and wife